Opinion of the Court
COX, Judge:
At a general court-martial with members, the accused pleaded guilty to committing sodomy with a child under 16 years of age and to engaging in conduct unbecoming an officer by committing indecent acts upon males under the age of 16 years, in violation of Articles 125 and 133, Uniform [118]*118Code of Military Justice, 10 USC §§ 925 and 933, respectively. He was sentenced to confinement for 28 years, total forfeitures, and dismissal. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as extended to confinement for 15 years, total forfeitures, and dismissal.
Upon review below, the Court of Military Review determined that the military judge abused his discretion when he denied a challenge for cause of a court member who, by reading a newspaper article prior to trial, learned that there was a pretrial agreement. However, it found that he did not know the terms of the agreement. Despite this determination, that court concluded that the error was harmless. 28 MJ 844 (1989).
The Judge Advocate General of the Air Force certified the following issue to this Court:
WHETHER THE UNITED STATES AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW IN HOLDING THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED A CHALLENGE FOR CAUSE AGAINST LIEUTENANT COLONEL HARRIS.
The accused cross-petitioned this Court, and we granted review of the following issue:
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT HELD THAT A FORCED USE OF A PEREMPTORY CHALLENGE, PURSUANT TO RCM 912(f)(4), MERELY PRESERVES THE ISSUE BUT DOES NOT CONSTITUTE PREJUDICE.
The accused entered pleas and was found guilty by the military judge on August 8, 1988. The following day the court-martial members sat to determine his sentence. Prior to trial, there was considerable coverage of the offenses by the local news media. In particular, two newspapers — The San Antonio Light and The San Antonio Express-News, featured articles about the accused’s pleas. The Light published a story that included the accused’s picture and an article stating that “Lt. Col. Carl R. Jobson’s plea was part of an agreement limiting the sentence he can be assessed.” The Express-News published an article that stated “a pretrial agreement was signed by both sides based on Jobson’s guilty plea.”
During voir dire, two potential members, Lieutenant Colonels Richard G. Hetzel and Michael H. Harris, indicated that they were aware that there was a pretrial agreement because they had read about it in newspaper articles. Defense counsel first qrc^ tioned Lieutenant Colonel Harris, who testified that he had read The Express-News article. He indicated, however, that he did not know whether the pretrial agreement would have any effect on the maximum punishment the accused could receive.1
Defense counsel challenged Lieutenant Colonel Harris for cause on the ground “that no one sitting on the panel should have any knowledge ... that a pretrial agreement exists.” The military judge denied the challenge, responding that Lieu[119]*119tenant Colonel Harris had testified that he could “be fair and open-minded”; that “he did not understand” the relationship of the pretrial agreement “to the term of confinement”; and that he did not “have any specific knowledge of what the pretrial agreement in the case is.”
When defense counsel eventually questioned Lieutenant Colonel Hetzel, he stated that he had “read ... [approximately] the first paragraph” of the Light article and was aware that there was a pretrial agreement. He further indicated that he understood that the agreement contained a sentence limitation. Defense counsel sought to challenge Lieutenant Colonel Hetzel for cause, despite the colonel’s contention that he understood the pretrial agreement should play no part in his deliberations. The military judge sustained the challenge for cause.
This action prompted defense counsel to request permission to question Lieutenant Colonel Harris further, which the military judge allowed. Apparently, Lieutenant Colonel Harris was previously aware of the pretrial agreement, and he may have been made aware of the fact that the agreement contained a limitation on confinement by defense counsel’s questions.2 Defense [120]*120counsel renewed his challenge of Lieutenant Colonel Harris; and, again, the challenge was denied by the military judge.
Based upon the military judge’s denial of the challenge against Lieutenant Colonel Harris, defense counsel requested “an additional ' peremptory challenge,” which also was denied. He then invoked the defense peremptory challenge against Lieutenant Colonel Harris, stating that, if the original challenge for cause had been granted, the peremptory challenge would have been used against yet another colonel.
There are several significant questions raised by this appeal.
First:
— Does a court-martial member’s knowledge of a pretrial agreement render him, per se, subject to a challenge for cause by either the Government or the defense?
— Indeed, is a member disqualified when he is aware that a pretrial agreement exists?
— If so, is the military judge obliged to excuse the member, sua sponte, with or without the consent of the accused?
Second:
— Is an accused entitled to a rehearing if the military judge errs in denying a challenge for cause and the accused properly preserves his challenge in accordance with RCM 912(f)(4), Manual for Courts-Martial, United States, 1984? or
— Can the resulting findings or sentence be affirmed by virtue of harmless error? Art. 59(a), UCMJ, 10 USC § 859(a).
We will answer these in reverse order. RCM 912(f)(4) was designed to permit an accused to preserve for appeal the correctness of the military judge’s denial of a challenge for cause. That rule provides:
When a challenge for cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review. However, when a challenge for cause is denied, a peremptory challenge by the challenging party against any member shall preserve the issue for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party, that party must state that it would have exercised its peremptory challenge against another member if the challenge for cause had been granted.
This rule was adopted in response to the controversy reflected in United States v. Harris, 13 MJ 288 (CMA 1982), see Drafters’ Analysis of RCM 912(f)(4), Manual, supra at A21-55, and makes four things clear:
(1) If the accused does not exercise his peremptory challenge at all, he waives his objection to denial of his challenge of a member for cause.
(2) If he peremptorily challenges the member whom he has unsuccessfully attempted to challenge for cause and does not state on the record that he would have used his peremptory challenge on some other member, he waives his objection.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
COX, Judge:
At a general court-martial with members, the accused pleaded guilty to committing sodomy with a child under 16 years of age and to engaging in conduct unbecoming an officer by committing indecent acts upon males under the age of 16 years, in violation of Articles 125 and 133, Uniform [118]*118Code of Military Justice, 10 USC §§ 925 and 933, respectively. He was sentenced to confinement for 28 years, total forfeitures, and dismissal. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as extended to confinement for 15 years, total forfeitures, and dismissal.
Upon review below, the Court of Military Review determined that the military judge abused his discretion when he denied a challenge for cause of a court member who, by reading a newspaper article prior to trial, learned that there was a pretrial agreement. However, it found that he did not know the terms of the agreement. Despite this determination, that court concluded that the error was harmless. 28 MJ 844 (1989).
The Judge Advocate General of the Air Force certified the following issue to this Court:
WHETHER THE UNITED STATES AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW IN HOLDING THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED A CHALLENGE FOR CAUSE AGAINST LIEUTENANT COLONEL HARRIS.
The accused cross-petitioned this Court, and we granted review of the following issue:
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT HELD THAT A FORCED USE OF A PEREMPTORY CHALLENGE, PURSUANT TO RCM 912(f)(4), MERELY PRESERVES THE ISSUE BUT DOES NOT CONSTITUTE PREJUDICE.
The accused entered pleas and was found guilty by the military judge on August 8, 1988. The following day the court-martial members sat to determine his sentence. Prior to trial, there was considerable coverage of the offenses by the local news media. In particular, two newspapers — The San Antonio Light and The San Antonio Express-News, featured articles about the accused’s pleas. The Light published a story that included the accused’s picture and an article stating that “Lt. Col. Carl R. Jobson’s plea was part of an agreement limiting the sentence he can be assessed.” The Express-News published an article that stated “a pretrial agreement was signed by both sides based on Jobson’s guilty plea.”
During voir dire, two potential members, Lieutenant Colonels Richard G. Hetzel and Michael H. Harris, indicated that they were aware that there was a pretrial agreement because they had read about it in newspaper articles. Defense counsel first qrc^ tioned Lieutenant Colonel Harris, who testified that he had read The Express-News article. He indicated, however, that he did not know whether the pretrial agreement would have any effect on the maximum punishment the accused could receive.1
Defense counsel challenged Lieutenant Colonel Harris for cause on the ground “that no one sitting on the panel should have any knowledge ... that a pretrial agreement exists.” The military judge denied the challenge, responding that Lieu[119]*119tenant Colonel Harris had testified that he could “be fair and open-minded”; that “he did not understand” the relationship of the pretrial agreement “to the term of confinement”; and that he did not “have any specific knowledge of what the pretrial agreement in the case is.”
When defense counsel eventually questioned Lieutenant Colonel Hetzel, he stated that he had “read ... [approximately] the first paragraph” of the Light article and was aware that there was a pretrial agreement. He further indicated that he understood that the agreement contained a sentence limitation. Defense counsel sought to challenge Lieutenant Colonel Hetzel for cause, despite the colonel’s contention that he understood the pretrial agreement should play no part in his deliberations. The military judge sustained the challenge for cause.
This action prompted defense counsel to request permission to question Lieutenant Colonel Harris further, which the military judge allowed. Apparently, Lieutenant Colonel Harris was previously aware of the pretrial agreement, and he may have been made aware of the fact that the agreement contained a limitation on confinement by defense counsel’s questions.2 Defense [120]*120counsel renewed his challenge of Lieutenant Colonel Harris; and, again, the challenge was denied by the military judge.
Based upon the military judge’s denial of the challenge against Lieutenant Colonel Harris, defense counsel requested “an additional ' peremptory challenge,” which also was denied. He then invoked the defense peremptory challenge against Lieutenant Colonel Harris, stating that, if the original challenge for cause had been granted, the peremptory challenge would have been used against yet another colonel.
There are several significant questions raised by this appeal.
First:
— Does a court-martial member’s knowledge of a pretrial agreement render him, per se, subject to a challenge for cause by either the Government or the defense?
— Indeed, is a member disqualified when he is aware that a pretrial agreement exists?
— If so, is the military judge obliged to excuse the member, sua sponte, with or without the consent of the accused?
Second:
— Is an accused entitled to a rehearing if the military judge errs in denying a challenge for cause and the accused properly preserves his challenge in accordance with RCM 912(f)(4), Manual for Courts-Martial, United States, 1984? or
— Can the resulting findings or sentence be affirmed by virtue of harmless error? Art. 59(a), UCMJ, 10 USC § 859(a).
We will answer these in reverse order. RCM 912(f)(4) was designed to permit an accused to preserve for appeal the correctness of the military judge’s denial of a challenge for cause. That rule provides:
When a challenge for cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review. However, when a challenge for cause is denied, a peremptory challenge by the challenging party against any member shall preserve the issue for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party, that party must state that it would have exercised its peremptory challenge against another member if the challenge for cause had been granted.
This rule was adopted in response to the controversy reflected in United States v. Harris, 13 MJ 288 (CMA 1982), see Drafters’ Analysis of RCM 912(f)(4), Manual, supra at A21-55, and makes four things clear:
(1) If the accused does not exercise his peremptory challenge at all, he waives his objection to denial of his challenge of a member for cause.
(2) If he peremptorily challenges the member whom he has unsuccessfully attempted to challenge for cause and does not state on the record that he would have used his peremptory challenge on some other member, he waives his objection.
(3) He does not waive his objection to the military judge’s denial of a challenge for cause if he peremptorily challenges another member.
(4) He does not waive his objection if he peremptorily challenges the member he has unsuccessfully challenged for cause and he states on the record that he would have peremptorily challenged another member if his challenge for cause had been granted.
Applying this rule to the facts of this case, it is clear that the Court of Military Review erred by not following the plain language of RCM 912(f)(4) and its Analysis. Manual, supra at A21-55. The accused exercised his peremptory challenge against [121]*121the member he had unsuccessfully challenged for cause. Thus, pursuant to the rule, he preserved his objection for review. If the military judge erred, the accused is entitled to a new hearing on sentence.
We agree with the construction of RCM 912(f)(4) which has been advanced by the United States Army Court of Military Review. United States v. Moyar, 24 MJ 635 (1987); United States v. Anderson, 23 MJ 894 (1987). We reject the opinion of the United States Air Force Court of Military Review herein that, if an accused elects to remove the objectionable member from the panel, the error can be tested for harmlessness. 28 MJ at 849. To so hold would render the language of RCM 912(f)(4) meaningless and, in every case, would require an accused, at his peril, to leave the objectionable member on the panel in order to obtain review of the military judge’s ruling on his challenge for cause. See United States v. Harris, supra at 293-94 (Everett, C.J., dissenting). This conclusion disposes of the granted issue favorably to the accused. We now turn to the certified issue.
The decisive issue is whether the military judge erred in denying the challenge of Lieutenant Colonel Harris for cause. We hold that he did not and answer the certified question in the affirmative.
Two Rules for Courts-Martial govern the situation developed here. RCM 705(e) provides:
Except in a special court-martial without a military judge, no member of a court-martial shall be informed of the existence of a pretrial agreement.
It is of particular note that the rule neither defines the verb “inform” nor, more importantly, does it provide a remedy in the event a member is either “informed" of the agreement (presumably by the Government) or inadvertently learns of the pretrial agreement through some neutral source, such as a daily newspaper.
RCM 912(f)(1) enumerates 13 specific grounds upon which to challenge for cause and one “catch-all” ground. Whether a member is informed of a pretrial agreement or inadvertently learns about it is not one of the enumerated grounds. The “catch-all” ground, RCM 912(f)(l)(N), provides:
(1) Grounds. A member shall be excused for cause whenever it shall appear that the member:
(N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
Notwithstanding our sensitivity to the mandate that military judges shall be liberal in granting challenges for cause, United States v. Smart, 21 MJ 15, 21 (CMA 1985); see United States v. Moyar, supra at 638, the record in this case supports the military judge’s finding that Lieutenant Colonel Harris was not subject to a challenge for cause.
The problem of jurors being exposed to information concerning a particular case through pretrial publicity is not a phenomenon unique to the military. The test of whether a particular juror is disqualified is accurately reflected in RCM 912(f)(1)(N). As the Supreme Court views it:
The constitutional standard of fairness requires that a defendant have “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. [717] at 722 [81 S.Ct. 1639 at 1642, 6 L.Ed.2d 751 (1961)]. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975).
We see no need to create judicially a fourteenth enumerated ground under RCM 912(f)(1). The rule provides a significant basis for a military judge to excuse a member for “cause” if that member has been either “informed” or “learns” of pretrial negotiations. Judges are often confronted with jurors or members who have acquired some extra-judicial knowledge concerning a case. It is resolution of these difficult and delicate matters that we entrust to the [122]*122good judgment of good men and women sitting on the trial bench.
Applying the foregoing principles to the facts of this case, we conclude that the military judge did not abuse his discretion in denying the challenge of Lieutenant Colonel Harris for cause. Thus, the opinion of the United States Air Force Court of Military Review reached the correct result — though for the wrong reason — so the decision below can still be upheld.
The decision of the United States Air Force Court of Military Review affirming the findings and sentence is affirmed.